Director of Public Prosecutions v Duong
[2019] VCC 1964
•29 November 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. 18-02345
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HAI THANH DUONG |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 November 2019 | |
DATE OF SENTENCE: | 29 November 2019 | |
CASE MAY BE CITED AS: | DPP v Duong | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1964 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Plea of guilty - one charge of aggravated burglary - no prior criminal history - general deterrence able to be achieved by the imposition of a noncustodial disposition - specific deterrence need not carry weight - low risk of reoffending - very good prospects of rehabilitation.
Legislation Cited: Crimes Act 1958, Sentencing Act 1991
Cases Cited:
Sentence: Community correction order for a period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J Goetz | OPP |
| For the Accused | Mr A Pyne Mr V Vuu | Victoria Legal Aid |
HIS HONOUR:
Introduction
1 Hai Thanh Duong, you have pleaded guilty to one charge of aggravated burglary contrary to s.77(1) of the Crimes Act 1958 which carries a maximum penalty of 25 years imprisonment (Charge 1).
2 You have no prior criminal history.
Circumstances of the offending
3 A prosecution opening was tendered on the plea and may be summarised as follows:
4 On 24 November 2016 at about 12.15am, you drove your dark grey Holden Commodore sedan registration WSL299 into a car park situated at the corner of Fitzgerald Road and The Avenue in Sunshine West. Shortly afterwards you entered the nearby Hungry Jack’s restaurant.
5 About a minute later, the victim in this matter, Trieu Anh Truong, drove her black Subaru Liberty vehicle into the same car park. She parked her vehicle outside Coles Express and walked into Hungry Jack’s.
6 Inside Hungry Jack’s, you ordered a meal and then stood to the back to wait for your food. Ms Truong entered the restaurant and ordered at the register. You were standing behind her.
7 At 12.22am, you collected your meal and left the store. A minute later
Ms Truong did the same. She walked back to her Subaru and drove out of the car park along The Avenue. You drove behind her vehicle in the same direction.
8 Ms Truong drove along The Avenue, then turned into Clues Court. The drive was approximately 800 metres and Ms Truong arrived home at approximately 12.30am.
9 Ms Truong opened the roller door to her garage using a remote control, and drove inside. She stopped her vehicle, opened the driver’s door and took one step out. You entered the garage on foot and came from behind the Subaru to the driver’s side. Ms Truong said “who the fuck are you?” twice and you did not answer.
10 You put your right hand over Ms Truong’s mouth and used your left hand to push her down and back into her vehicle. Your hand was on her chest just below her neck. As she struggled against you, Ms Truong bit you on the hand, and kicked out at you. Her glasses became dislodged. She said “who the fuck are you?” again. She then screamed loudly. This caused you to stop and run off.
11 You ran out into the street. Tome Angelovksi, a neighbour, had heard
Ms Truong scream. He observed you walk quickly up the court towards the dead end. He saw you get into your car and drive off.
12 At about 1.05am police were notified by Police Communications. Police attended at Clues Court at 1.13am and a crime scene was established. Senior Constable Fattore seized a white cap found by Ms Truong on the passenger seat floor of her car as an exhibit.
13 The cap seized by police was then submitted for forensic analysis at the Victorian Forensic Services Centre and examined for the presence of DNA.Your DNA was a contributor to the sample, with a likelihood ratio of 100 billion.
14 On Friday 25 November 2016 you attended at Sunshine Police Station to be interviewed by appointment.
15 During the recorded interview under caution you stated inter alia:
· that you went to Hungry Jack’s on your way back to the hospital, at 1 or 1.30;
· that you were driving the Holden registration WLS 229;
· that you couldn’t recall which exit you drove out;
· that you then you went to the hospital;
· after being shown a still image from Hungry Jack’s you said “that looks like me”;
· that you knew nothing about the aggravated burglary;
· that you had not seen the hat before; and
· that after being asked for your DNA to test against the cap, you said you had one similar before a long time ago.
Nature and gravity of the offending
16 Aggravated burglary is recognised by Parliament as a serious offence which is reflected in the maximum penalty of 25 years imprisonment.
17 Here it has been accepted by the prosecution that while the facts of this example of aggravated burglary are concerning, in all the circumstances the offence must fall towards the lower level. In this case the prosecution consented to a sentencing indication which was conducted on 18 October 2019. Further, as a result of the outcome of that hearing, a plea was conducted where the prosecution did not disagree that a non custodial disposition was within range.
18 This offending did however have some disturbing aspects to it. It is self evident that the victim in this case would have been extremely frightened when you approached her in her own garage and assaulted her. It was late at night and dark. It appears that it was the result of Ms Truong physically resisting you and screaming that caused you to stop and run off.
19 Having read the psychological material, I accept that there is evidence to demonstrate that you were under extreme physical and mental stress at the time of this incident. Two days before this incident your daughter was born with Down syndrome. You had not slept since the birth of your daughter and were suffering shock and distress which developed into an adjustment disorder in the following weeks. Thus while your behaviour is concerning and to some degree unexplained, I accept that your personal circumstances at the time greatly affected your judgement which will be discussed further below.
Victim impact statement
20
Ms Truong prepared a victim impact statement that was tendered on the plea. Quite understandably Ms Truong feels unsafe in her own home since the incident. She has had to increase the security in the home which has included improving the lighting around the garage area. From a personal perspective she suffers flashbacks and is constantly taking precautions by arranging for family members or friends to accompany her when she goes out at night. Finally, she reports that the criminal proceedings have impacted on her as a result of the stress and inconvenience. I have taken the contents of
Ms Truong’s victim impact statement into account.
Personal circumstances
21 You are now 41 years of age.
22 You were born in Vietnam and report that you had an uneventful childhood. You are the second youngest of five children. You completed school and then a diploma in marketing.
23 You came to Australia as a visitor in 2008 and migrated permanently in 2009 with your wife whom you had married the year earlier. You have two children, a boy aged five and a girl aged two. As noted, your daughter was diagnosed with Down syndrome.
24 In Vietnam you were working in real estate and after coming to Australia you worked as a hairdresser and as a delivery man. When your daughter was born the hair salon business where you were working and which was owned by your wife, was sold. You then went on Newstart Allowance.
25 As noted above, on 22 November 2016 which was two days before the commission of this offence, you looked at your child just after she was born and realised that she probably had Down syndrome. You were shocked and crying. You did not sleep during those days and were suffering fatigue.
26 Due to your fatigue and sleeplessness during the initial weeks after your baby’s birth you report that you considered driving onto the other side of the road however you did not act on that thought. You have denied any suicidal intent and state that those thoughts happened once or twice during the initial few weeks following the birth of your child.
27 Two reports were prepared by Dr Sachin Jindal, consultant psychiatrist. The first, dated 2 October 2019, was tendered at the sentencing indication hearing and the second dated 26 November 2019 was tendered on the plea. Dr Jindal took a history from you and assessed your mental state. While providing some detail in relation to the stress you suffered around the time of your daughter’s birth, he reports that there was no evidence of formal thought disorder. Further, on cognitive testing there was no evidence of cognitive impairment. In relation to the charges, you initially reported to him that you do not remember committing the alleged offence.
28 Dr Jindal reports that it is clear that you were quite shocked and distressed after the realisation that your daughter may have Down syndrome when you first saw her. He reports that you had suffered sleeplessness and fatigue leading up to the birth and the shock and distress lead to further anxiety, further sleeplessness and further fatigue. Dr Jindal reports that this increased your stress and affected your functioning for many weeks. He is also of the view that you developed adjustment disorder and felt hopeless about the future of your daughter and your family. Ultimately Dr Jindal states that your own coping skills and support from your wife resulted in the adjustment disorder self remitting after about four months and therefore the disorder was of a temporary nature.
29 Dr Jindal is also of the opinion that there is no direct relationship between the adjustment disorder and the offending. That said, the offending happened two days after the birth of your daughter and as a result of being shocked, distressed and sleepless for three to four days at that time, I accept that your judgement and memory may have been affected.
30 The second report provides an opinion in relation to appropriate programs that may assist in reducing the risk of recidivism. In general terms Dr Jindal recommends psychological therapy that focuses on strategies for dealing with stress and building resistance. In other words, strategies that assist you in identifying and understanding warning signs when stress is affecting your mood and thinking.
Sentencing considerations
31 I take into account your plea of guilty which was entered on 18 October 2019 following a sentencing indication hearing conducted on the same day. While not entered early, your plea has avoided the need for a trial and most importantly has avoided the need for the victim in this matter to have to give evidence. In the circumstances your plea had facilitated the course of justice and you are entitled to have that taken into account in your favour.
32 As to remorse, in my view now that you accept the nature of your criminal conduct and the effect on the victim, you are beginning to demonstrate remorse. In the assessment report prepared by Corrections Victoria, the writer notes that you expressed that you were truly sorry to the victim and that you acknowledged the pain the victim must have felt as a result of the incident. In my view, while you have taken some time to appreciate the nature and effect of your conduct, you have now accepted responsibility and have some insight into your actions.
33 General deterrence is a prominent sentencing consideration in this instance and ordinarily that is why custodial sentences are usually imposed for aggravated burglary. However each case must turn on its own facts and as conceded by the prosecution in all the circumstances presented here, general deterrence is still able to be achieved by the imposition of a noncustodial disposition. As to specific deterrence, you come before the court at age 41 with no prior convictions and as outlined above, the personal circumstances you found yourself in on this occasion culminated in you acting in a way that was not in character. Further, you have been assessed as a low risk of reoffending. Thus in my view specific deterrence need not carry weight in the sentencing equation.
34 As to your prospects of rehabilitation, in my view for the reasons already noted they are able to be assessed as very good. You have a supportive partner and you have young family that you are committed to. That said, your prospects will be enhanced if you are able to learn strategies to assist you in dealing with stressful situations.
35 I had you assessed for a community correction order and, as noted above, you have been assessed as being a low risk of recidivism. The report writer does however recommend a mental health assessment and treatment condition. In my view while you do require further support in order to assist you in dealing with future stressful situations, the order must also contain an additional punitive condition. As such you will be required to undertake unpaid community work. Further, as discussed during the plea, in my view you would benefit from undertaking programs to address your specific offending behaviour.
Sentence
36 Mr Duong, will you please stand.
37 Hai Thanh Duong on Charge 1 aggravated burglary you will be convicted and placed on a community correction order for a period of two years.
38 In addition to the standard conditions attached to all community correction orders, you will be required to complete 150 hours of unpaid community work. The order will also contain conditions that will require you to undertake mental health assessment and treatment and undertake programs to address your offending behaviour.
39 Further, pursuant to s 48CA of the Sentencing Act 1991, I direct that all of the hours that you satisfactorily complete pursuant to the treatment and rehabilitation conditions may be credited as hours of unpaid community work.
40 Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty I would have sentenced you to a period of imprisonment, together with a community correction order.
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